China Needs the Rule of Law

What the fall of a Communist princeling and the jailbreak of a blind pauper tell us about China's prospects.


Is China on the verge of embracing the rule of law? After all, Chinese officials are asserting that they will impartially apply the law to both Bo Xilai, a fallen Communist Party princeling accused of corruption, and human rights activist Chen Guangcheng, who has just escaped years of house arrest by local police.

The brilliant analytical framework devised by economics Nobelist Douglass North, University of Maryland economist John Joseph Wallis, and Stanford University political scientist Barry Weingast in their 2009 book Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History suggests that hope for a speedy Chinese adoption of the rule of law is unfortunately premature.

In Violence and Social Orders, North and his colleagues delineate a critical distinction between what they call "natural states" and "open access orders." They also look at the history of how a few societies toward the end of the 18th century began the transition from natural to open access.

In their typology, natural states are ruled by a coalition of elites who control access to political power and economic resources. No significant organizations exist independent of the state and access to business, religious, military, and administrative organizations is limited to members of the elite coalition. Personal relationships is how power gets allocated among the members of the coalition. In fact, the idea of elite personal networks of influence and reciprocal obligation is neatly captured by the Chinese word guanxi.

Natural states are organized as patron-client networks in which elite patrons offer protection and channel resources to clients in exchange for their loyalty and support should intra-elite violence break out. Elite coalitions contain violence among non-elites because peace maximizes returns on the resource monopolies they own. Violence breaks out whenever members of an elite coalition think they have more to gain by defecting from the coalition. "Most economies still today," North states, "are natural states."

In the late 18th century some societies began to transition to open access orders in which enduring organizations exist independently of the state, e.g., formal political parties, advocacy groups, and corporations. The organizations operate under the rule of law. The rule of law means that all persons, institutions, and entities—public and private—including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. In the transition to open access orders, subjects become citizens.

The elite coalition that rules China is, of course, the Communist Party. The top organization of that elite coalition is the Politburo and the tip top center of power is the nine-member Standing Committee of the Politburo that oversees day-to-day administration. According to Brookings Institution analyst Cheng Li, there are currently two factions vying for power in the Politburo. One is comprised of the protégés of former President Jiang Zemin and the other is headed up by current President Hu Jintao and Premier Wen Jiabao. The deposed Bo was a member of the Jiang faction. Bo is the son of Bo Yibo, an ally of Deng Xiaoping. Deng reversed Mao Tse-tung's destructive Cultural Revolution and launched the current drive toward modernization. Many other scions of former Communist revolutionary leaders, known as "princelings," are part of the Jiang faction.

Later this year, China will undergo its once-in-a-decade leadership transition at the 18th National Party Congress. Bo was seeking to be elevated to the powerful nine-member Standing Committee of the Politburo. Bo had achieved great notoriety and some popularity as the party leader of the inland city of Chongqing by building vast public works projects, launching a crime crackdown, and promoting leftist nostalgia by reviving Maoist themes and songs. Bo's wife Gu Kailai was known as a successful businesswoman. Bo's fall from power was precipitated by the flight of his chief of police Wang Lijun to the U.S. consulate where he accused Bo's wife of poisoning British expatriate businessman Neil Heywood for refusing to smuggle cash out the country for her. Bo is now being investigated for "serious violations" of party discipline. Gu is being investigated for murder.

In April, blind human rights lawyer Chen Guangcheng escaped to the U.S. embassy in Beijing complaining that he and his family have been forcibly detained by local police in their village. Chen had been imprisoned earlier for helping local farmers fight expropriation of their land and suing local officials for forcing women to have abortions in conformity with China's one-child policy. Chen left the embassy to convalesce in hospital for a broken foot, injured during his escape. Chinese authorities in Beijing have apparently agreed to let Chen leave for the United States to study law.

What ties these two disparate cases together is the assertion by Chinese officials that both will be handled under the rule of law. For example, official statements declare that the investigation of Bo is a "resolute move" by the Party to "continue to unswervingly push forward the rule of law." With regard to Chen the official China Daily flatly stated, "China is a country under the rule of law. The legal rights of any citizen are protected by its Constitution and laws." What, if anything, do these official references to the rule of law signify about China's future?

North and his colleagues identify the establishment of the rule of law (initially among members of the elite coalition) as the first of three "doorstep conditions" needed for the transition from a natural state to an open access order. The other two are the development of public and private elite organizations—including the state itself, whose existences do not depend on specific individuals—and consolidated political control of the military. Essentially the state no longer depends chiefly on the operation of patron-client networks with relationships becoming contractual rather than personal.

What is crucial is that each of the steps toward an open access order must be in the interests of the elites. For example, expanding the rule of law to non-elites give elite members greater opportunities to engage in profitable transactions. The existence of these "doorstep conditions" does not guarantee a transition from a natural state to open access, but North and colleagues persuasively assert that such a transition will not happen without them.

How close is China to standing at the threshold of these three doorstep conditions? Let's start with the third one first, political control over the military. Up until the economic and political reforms initiated by Deng Xiaoping, the People's Liberation Army (PLA) acted as a "party-army" with considerable say in determining who the leaders of China would be. However, National Defense University analysts Michael Kiselycznyk and Phillip C. Saunders find [PDF] that in the last two decades there has been a "markedly reduced role of the PLA in Chinese elite politics." In fact, none of the current members of the Politburo's Standing Committee have served in the military. When Bo was ousted there were Internet rumors that a military coup had been attempted. A recent editorial in the Liberation Army Daily warns China's military to remain loyal to the Party. At the moment it appears that China has successfully met this doorstep condition.

What about the development of permanent and impersonal private and public elite organizations? The idea is that power resides in the office not with the particular officeholder. If the officeholder steps down he retains no power. First, the good news: The ruling coalition does appear to be trying to establish permanent governance organizations whose operation is not dependent on the power wielded by specific individuals. A May 2012 Congressional Research Service study noted [PDF] that "enforcement of age and term limits for top Party and State positions has brought a degree of predictability into otherwise opaque Chinese elite politics." As has been the practice at the two most recent Party Congresses, officials 68 years of age or older will likely be required to retire at the 18th Party Congress later this year. Newly appointed Politburo members will be 62 years old or younger. In addition, all top officials are limited to two five-year terms. Nevertheless, the abrupt Bo ouster suggests that elite infighting can still upset orderly succession plans.

While the operation of public organizations appears to be being regularized, private organizations outside the state simply do not exist in China. Thus there is no civil society challenge to the Party elites. And China's communist elite means to keep it that way. As evidence consider that China's spending on its internal security agencies, e.g., police, prisons, courts, and censors, is greater than its total military spending. The internal security system "maintains stability" by preventing protests against the regime and stopping them from spreading when they do break out. China is clearly far from reaching the second doorstep condition required for transitioning to an open access order.

That gets us to the first doorstep condition, the establishment of the rule of law. The communist elite does appear to be trying to figure out how to regularize the process of selecting future leaders whose power depends, not on their network of personal connections within the elite coalition, but on the bureaucratic interests of the organizations they head. This could be interpreted as a tiny step toward setting up a system of rule of law that applies to members of the elite.

Chinese officials are asserting that the rule of law will apply to both Bo and Chen. This is not going to happen. No further evidence is needed for that claim than how both men were treated prior to the recent imbroglios. As a Communist princeling, Bo's advancement was facilitated by coalitional politics among members of the elite. As a member of the elite coalition he had access to both economic and political resources which he has evidently used to eliminate enemies and enrich himself and his family.Even his fall from power is the result of coalitional infighting, not anti-corruption efforts.

In the case of Chen, his insistence that local officials actually observe the law with regard to property and abortion got him imprisoned for four years on trumped charges that he had assembled a crowd to disrupt traffic. With regard to the rule of law, Chen's lawyers were prevented from gathering evidence or interviewing witnesses in his defense. Since he got out of prison he and his family have been imprisoned in their home for the last two years. Even now irate officials have apparently beaten members of his family and arrested a nephew on what seems to be a specious charge of attempted murder as retaliation for Chen's escape from custody.

The protestations by Chinese officials that their country observes the rule of law ring hollow. A couple of decades of spectacular economic growth may have convinced China's Communist elite that reining in corruption and establishing the rule of law is not necessary. After all, China has raised incomes tenfold from $350 in1990 to over $3,000 per capita today. However, a 2003 World Bank study [PDF] finds that "entrenched elites in a country can benefit from a worsening status quo of misgovernance and can successfully resist demands for change even as incomes rise." Under such conditions, economic growth eventually stalls out unless a country transitions to an open access order. As the cases of Bo and Chen illustrate in their own ways, China is still far from the doorstep conditions that would enable a transition to an open access order and guarantee its future prosperity.

Ronald Bailey is Reason magazine's science correspondent. His book Liberation Biology: The Scientific and Moral Case for the Biotech Revolution is now available from Prometheus Books.